P.H. v. C.S. (In Re B.H.) ( 2019 )

2019 UT App 103THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ADOPTION OF B.H.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
P.H. AND A.D.,
Appellees,
v.
C.S.,
Appellant.
Opinion
No. 20171038-CA
Filed June 13, 2019
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 162900039
Julie J. Nelson, Alexandra Mareschal, and Lisa
Lokken, Attorneys for Appellant
Jessica S. Couser and Benjamin K. Lusty, Attorneys
for Appellees
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.
MORTENSEN, Judge:
¶1 Although M.S. (Mother) and C.S. (Father) had been
married since 2008, Mother claimed that a man other than Father
(Purported Father) was the biological parent of B.H. (Child),
who was born in Montana in early 2016. Within one week of
Child’s birth, Mother voluntarily relinquished her parental
rights and Child was placed into the custody of P.H. and A.D
(Adoptive Parents), who resided in Utah. Adoptive Parents filed
a petition for adoption in the State of Utah. Father was served
In re adoption of B.H.
notice of the adoption proceedings and he intervened in the
action. After a bench trial, the district court terminated Father’s
parental rights and finalized the adoption. On appeal, Father
argues that (1) the district court lacked subject matter
jurisdiction to terminate his parental rights and (2) the district
court erred in finalizing the adoption because the Interstate
Compact on the Placement of Children (ICPC) 1 request form,
filled out by Mother, was materially deficient in that it listed
Purported Father, rather than Father, as the parent of Child. We
conclude that the district court had jurisdiction, but set aside the
adoption decree and remand for additional findings and
conclusions on compliance with the ICPC.
BACKGROUND
¶2 Child was born in Montana on January 30, 2016. Less than
one week after Child’s birth, Mother and Purported Father
voluntarily relinquished their parental rights and consented to
place Child for adoption with Adoptive Parents, who resided in
Utah. Child was discharged from the hospital and placed into
the custody of Adoptive Parents on February 5, 2016. Adoptive
Parents remained in Montana until an ICPC request form 100A,
listing Mother and Purported Father as Child’s parents, was
approved by all the required ICPC administrators on February 9,
1. The ICPC “is a uniform law that has been enacted by all fifty
states, the District of Columbia, and the U.S. Virgin Islands.”
Alternative Options & Services for Children v. Chapman, 2004 UT
App 488, ¶ 2, 106 P.3d 744. “The purpose of the ICPC is to
promote cooperation among the states in the interstate
placement of children to ensure that the best interests of children
are met.” Id. Utah’s version of the ICPC is codified at Utah Code
sections 62A-4a-701 to -711.
20171038-CA 2 2019 UT App 103In re adoption of B.H.
2016. 2 The record indicates that Adoptive Parents transported
Child to Utah the next day, on February 10, 2016.
¶3 Adoptive Parents initiated adoption proceedings by
filing a petition (Adoption Petition) on January 26, 2016. On
February 10, 2016, Adoptive Parents filed a Motion for
Temporary Custody of Child and indicated that they had
“recently learned that [Mother] is still technically married to
[Father]” and Adoptive Parents were “working on determining
paternity and/or providing notice to address any legal interests
[of Father].” The district court granted temporary custody of
Child to Adoptive Parents the next day (Temporary Custody
Order).
¶4 On February 22, 2016, Adoptive Parents sent notice of the
adoption proceedings to Father. Father intervened two weeks
later.
¶5 Meanwhile, Father filed for divorce from Mother in
Montana on March 14, 2016. As part of the divorce, the Montana
court ordered genetic testing of Father and Child, which
determined that Father was Child’s biological parent.
¶6 On June 29, 2016, Adoptive Parents petitioned the
district court—in the adoption proceedings—to terminate
Father’s parental rights (Termination Petition). The district
2. The ICPC requires that an ICPC-100A “Interstate Compact
Placement Request” form be approved by an ICPC administrator
in both the sending state and receiving state before a prospective
adoptive child may be transported across state lines. See
American Public Human Services Association, ICPC Regulations,
https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.aspx
[https://perma.cc/LZ24-GRSF].
20171038-CA 3 2019 UT App 103In re adoption of B.H.
court held a bench trial on the Termination Petition on July 31,
2017. After the trial, but before ruling on Father’s parental
rights, the district court ordered the parties to file a
memorandum addressing whether the court had jurisdiction
to terminate Father’s parental rights. The district court
concluded that it had jurisdiction under Utah Code section 78B-
6-105, terminated Father’s parental rights, and finalized the
adoption.
¶7 Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Father raises two issues. First, he contends that the district
court erred in concluding that it had jurisdiction to terminate his
parental rights. Issues concerning jurisdiction are reviewed for
correctness and we grant no deference to the district court’s
conclusion. State v. Wynn, 2017 UT App 211, ¶ 11, 407 P.3d 1113;
see also State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990; In re A.J.B.,
2017 UT App 237, ¶ 12, 414 P.3d 552.
¶9 Second, Father contends that the district court erred in
finalizing the adoption, because the ICPC was not complied
with. “‘The proper interpretation and application of a statute is a
question of law which we review for correctness . . . .’” In re
P.F.B., 2008 UT App 271, ¶ 10, 191 P.3d 49 (omission in original)
(quoting Gutierrez v. Medley, 972 P.2d 913, 914–15 (Utah 1998)).
ANALYSIS
I. Jurisdiction
¶10 Father contends that the district court erred in
terminating his parental rights, because the court lacked
jurisdiction under the Utah Uniform Child Custody Jurisdiction
20171038-CA 4 2019 UT App 103In re adoption of B.H.
and Enforcement Act (UCCJEA). 3 Father also contends that the
court lacked jurisdiction under the Utah Adoption Act, see
generally Utah Code Ann. §§ 78B-6-101 to -146 (LexisNexis 2018), 4
because, under these facts, jurisdiction under the UCCJEA must
be established as a prerequisite to jurisdiction under the
Adoption Act. We review jurisdictional requirements under the
Adoption Act and UCCJEA in turn.
A. Adoption Act
¶11 The Adoption Act confers jurisdiction over adoption
proceedings “in the district where the prospective adoptive
parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis
2018). Thus, as an initial matter, where Adoptive Parents reside
in Utah and the Adoption Petition was filed in Utah, the district
court below properly exercised jurisdiction under the Adoption
Act. But Father argues that the district court lacked jurisdiction
to terminate his parental rights under the Adoption Act “because
the termination proceeding is not itself the adoption
proceeding.” This argument is unavailing for two reasons.
¶12 First, the Adoption Act expressly confers subject matter
jurisdiction to terminate parental rights for the purpose of
facilitating an adoption. Id. § 78B-6-112(1). Section 78B-6-112 also
expressly states that a petition to terminate parental rights may
be “(a) joined with a proceeding on an adoption petition; or
(b) filed as a separate proceeding before or after a petition to
3. The UCCJEA is codified at Utah Code sections 78B-13-101
to -318.
4. Because the statutory provisions in effect at the relevant time
do not differ in any material way from those now in effect,
unless otherwise indicated, we cite the current version of the
Utah Code.
20171038-CA 5 2019 UT App 103In re adoption of B.H.
adopt the child is filed.” Id. § 78B-6-112(2). Here, Adoptive
Parents initiated the adoption proceedings by filing the
Adoption Petition in January 2016. And in June 2016, Adoptive
Parents filed the Termination Petition in the same adoption
proceedings. Because the Adoption Act expressly provides for
jurisdiction over a petition to terminate parental rights when
that petition is filed within an adoption proceeding, and because
that procedure was followed here, we conclude that the district
court had jurisdiction over both the Adoption Petition and the
Termination Petition.
¶13 Father cites the dissenting opinion in Osborne v. Adoption
Center of Choice, 2003 UT 15, 70 P.3d 58, to support his argument
that the termination proceeding was separate from the adoption
proceedings. See id. ¶ 53 (Durham, J., dissenting) (“[A
determination of parental rights] is not an adoption proceeding,
but a separate proceeding that precedes an adoption
proceeding.” (cleaned up)). This argument falls short for two
reasons. First, despite the dissent’s position in Osborne, the
majority held that the district court did not exceed its jurisdiction
by making a parental-rights determination within the adoption
proceedings. Id. ¶¶ 12–13, 29 (majority opinion). Second, the
relevant portion of the Utah Code in effect at the time Osborne
was decided provided that a petition for determination of
parental rights may be filed “‘at any time prior to the filing of a
petition for adoption.’” Id. ¶ 45 (Durham, J., dissenting)
(emphasis added) (quoting Utah Code Ann. § 78-30-4.24 (2002)).
However, this provision was amended after Osborne and permits
a determination of parental rights to be requested by petition
any time prior to the “finalization of an adoption,” id.
§ 78B-6-109(1)(a)–(b) (LexisNexis 2018) (emphasis added), or by
motion within an adoption proceeding, id. § 78B-6-109(2).
Accordingly, because precedent and the applicable Utah statute
allow for a determination of parental rights within an adoption
20171038-CA 6 2019 UT App 103In re adoption of B.H.
proceeding, we conclude that Father’s argument is without
merit.
¶14 Second, the district court in this case had jurisdiction to
terminate Father’s parental rights, despite the fact that he resides
in Montana, because Father received notice of the adoption
proceedings and intervened. The Adoption Act provides that
“the fact of the minor’s presence within the state shall confer
jurisdiction . . . , provided that due notice has been given in
accordance with the Utah Rules of Civil Procedure.” Id.§ 78B-6-105(4)(a); cf. Beltran v. Allan, 926 P.2d 892, 898 (Utah Ct.
App. 1996) (holding that an out-of-state father was subject to
Utah’s statutory scheme and therefore required to file notice of
paternity because he was on notice that the mother was in Utah
to place their child for adoption). Here, Father received notice of
the adoption proceedings on February 22, 2016. Specifically, he
was served notice that (1) adoption proceedings had been filed
in Utah, (2) he could intervene in the adoption proceedings, and
(3) his failure to intervene would result in a waiver and
forfeiture of all rights in relation to Child. This notice was
sufficient to confer jurisdiction to the district court under section
78B-6-105(4)(a) of the Adoption Act.
¶15 The exercise of jurisdiction over a non-resident is not
unique to this case. Our supreme court in In re adoption of B.B.D.,
1999 UT 70, 984 P.2d 967, held that when a non-resident father
intervened in adoption proceedings, he “voluntarily invoked
and submitted to the jurisdiction of Utah, its laws, and its court
system.” Id. ¶ 29. This holding illustrates that when an out-of-
state father intervenes in adoption proceedings, he has not only
waived personal jurisdiction but also submitted to Utah’s laws.
Id. ¶¶ 30–33; see also Beltran, 926 P.2d at 898 (holding that an out-
of-state father was subject to Utah’s statutory scheme upon
receiving notice). Accordingly, Father’s intervention in the
adoption proceedings invoked the jurisdiction of the district
20171038-CA 7 2019 UT App 103In re adoption of B.H.
court, including jurisdiction to terminate Father’s parental rights
as part of the overall adoption proceedings.
B. UCCJEA
¶16 Father argues that “Utah cannot terminate a parent’s
rights in the context of an adoption without that court having
acquired jurisdiction to do so under the UCCJEA.” In other
words, Father contends that, under these facts, jurisdiction
under the UCCJEA is a prerequisite to jurisdiction under the
Adoption Act. We disagree.
¶17 Father first relies on section 78B-13-201 of the UCCJEA,
which provides that the UCCJEA is the “exclusive jurisdictional
basis for making a child custody determination.” Utah Code
Ann. § 78B-13-201(2) (LexisNexis 2018). The UCCJEA also
expressly provides, however, that “[t]his chapter does not
govern . . . an adoption proceeding.” Id. § 78B-13-103(2). And the
UCCJEA defines “adoption proceeding” broadly: “For purposes
of this section, ‘adoption proceeding’ means any proceeding
under Title 78B, Chapter 6, Part 1, Utah Adoption Act.” Id.
§ 78B-13-102(1). Thus, where the plain language of the UCCJEA
unambiguously excludes the UCCJEA from adoption
proceedings, Father’s argument misses the mark.
¶18 Father next contends that the Adoption Act acknowledges
that jurisdiction must be established under the UCCJEA in order
to terminate an out-of-state parent’s rights. Father raises the
point that the Adoption Act requires courts to make a finding
that an adoption complies with the ICPC. See id. § 78B-6-107(1).
Father then argues that compliance with the ICPC necessarily
requires “that the jurisdiction requirements of the UCCJEA be
satisfied.” We are not persuaded.
¶19 First, the Adoption Act requires only that an adoption
comply with the ICPC, not the ICPC and the UCCJEA. Given the
20171038-CA 8 2019 UT App 103In re adoption of B.H.
legislature’s expressed directive that the UCCJEA does not
govern adoption proceedings, the UCCJEA and ICPC are
distinct and separate titles under the Utah Code, and the ICPC
does not expressly reference the UCCJEA, we are hard-pressed
to conclude that the legislature intended compliance with the
ICPC to mean compliance with the ICPC and the UCCJEA. See
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (“The best evidence of the legislature’s intent is the plain
language of the statute itself.” (cleaned up)).
¶20 Second, that the ICPC overlaps with the Adoption Act in
some respects and with the UCCJEA in others does not create
overlap between the Adoption Act and the UCCJEA—especially
given the clear legislative directive that the UCCJEA does not
govern adoption proceedings. The ICPC defines placement as
“the arrangement for the care of a child in a family free,
adoptive, or boarding home, or in a child-caring agency or
institution.” Utah Code Ann. § 62A-4a-701 art. II(4) (LexisNexis
2018). In other words, adoptions are only one of several
“arrangement[s] for the care of a child” contemplated and
governed by the ICPC. Accordingly, even if the jurisdictional
requirements of the UCCJEA must be met under some scenarios
also governed by the ICPC, it does not follow that a party must
comply with the UCCJEA to satisfy the ICPC in every instance.
¶21 Father contends that Nevares v. Adoptive Couple, 2016 UT
39, 384 P.3d 213, illustrates that jurisdiction under the UCCJEA
must be established prior to jurisdiction under the Adoption Act.
In Nevares, our supreme court grappled with jurisdiction under
the UCCJEA when a father filed a paternity action in Utah, id.
¶ 2, despite the fact that the child and the adoptive parents
resided in Illinois at the time the action was filed, id. ¶ 7.
Ultimately, the court held that Utah did not have UCCJEA
jurisdiction over the father’s paternity action because (1) Utah
ceased to be the child’s home state when he moved to Illinois, id.
¶¶ 16–17, and (2) although Illinois was not the child’s home state
20171038-CA 9 2019 UT App 103In re adoption of B.H.
(because he had not resided there for more than six months prior
to the father’s paternity action), jurisdiction in Illinois was
proper because the child had “a significant connection with
Illinois” vis-à-vis his physical presence in the state and the fact
that the adoptive parents had resided in Illinois for more than
five years, id. ¶ 21 (cleaned up).
¶22 The facts in Nevares are both instructive and
distinguishable. Nevares is instructive because it illustrates that
even if the UCCJEA applied in this case, Utah would have
jurisdiction. Here, as in Nevares, Child has no “home state.”
Although Montana was Child’s home state from January 30,
2016 (Child’s date of birth), to February 10, 2016 (when Child
moved to Utah), Montana ceased to be Child’s home state when
Child moved to Utah with Adoptive Parents. See id. ¶ 16 (“Utah
ceased to be [the child’s] home state once he moved to Illinois
with [the adoptive parents].”). Further, when the Adoption
Petition and Motion for Temporary Custody were filed in Utah,
Child had not resided in Utah for more than six months; and
therefore, Utah was not Child’s home state. See id. However, also
like the child in Nevares, Child in this case had significant ties to
Utah sufficient to confer jurisdiction under the UCCJEA.
Specifically, Child was present in Utah, and Adoptive Parents,
who were acting as Child’s parents, resided in Utah. Thus,
Nevares demonstrates that jurisdiction would have been proper
under the UCCJEA if it applied to this case. 5 See id. ¶ 21.
5. Even if analysis under the UCCJEA resulted in “concurrent
jurisdiction” by virtue of Father’s presence in Montana, Utah
would nonetheless have priority jurisdiction because the
Adoption Petition, Motion for Temporary Custody, and
Temporary Custody Order were filed in Utah prior to Father’s
divorce action in Montana. See Liska v. Liska, 902 P.2d 644, 647–48
(Utah Ct. App. 1995) (holding that Utah had primary jurisdiction
(continued…)
20171038-CA 10 2019 UT App 103In re adoption of B.H.
¶23 Nevares is also distinguishable and demonstrates that
the UCCJEA is not applicable in this case. The UCCJEA
governed jurisdiction in Nevares because the father filed
the paternity action in Utah prior to the time the adoptive
parents filed the petition for adoption in Illinois. Id. ¶ 7.
Thus, the provision in Utah’s UCCJEA providing that
the UCCJEA does not apply to adoption proceedings was
not triggered, and therefore, Nevares is distinguishable from
this case because it concerned a paternity action, not an
adoption.
¶24 Simply put, we disagree with Father’s contention that the
legislature’s directive that the UCCJEA does not govern
adoption proceedings should be interpreted to mean that the
UCCJEA operates to, in effect, govern adoption proceedings.
Instead, we conclude that the district court had jurisdiction to
terminate Father’s parental rights and finalize the adoption
decree under the Adoption Act. 6
(…continued)
under the UCCJEA because a divorce decree, which determined
child custody, originated in Utah prior to the action filed in
Colorado).
6. Father also contends that the district court should have
declined jurisdiction because Mother engaged in unjustifiable
conduct by listing Purported Father on the ICPC request form.
See Utah Code Ann. § 78B-13-208(1) (LexisNexis 2018) (“[I]f a
court of this state has jurisdiction under this chapter because a
person invoking the jurisdiction has engaged in unjustifiable
conduct, the court shall decline to exercise its jurisdiction . . . .”).
But because this provision falls under the UCCJEA, we conclude
that it does not apply to jurisdiction conferred by the Adoption
Act.
20171038-CA 11 2019 UT App 103In re adoption of B.H.
II. Compliance with the ICPC
¶25 Next, Father contends that the district court erred in
finalizing the adoption because the ICPC was not complied with
as the result of Mother listing Purported Father on the ICPC
request form rather than Father. The ICPC “is a uniform law that
has been enacted by all fifty states, the District of Columbia, and
the U.S. Virgin Islands.” Alternative Options & Services for
Children v. Chapman, 2004 UT App 488, ¶ 2, 106 P.3d 744. The
ICPC requires that “[p]rior to sending, bringing, or causing any
child to be sent or brought into a receiving state . . . the sending
agency shall furnish the appropriate public authorities in the
receiving state written notice of the intention to send, bring, or
place the child in the receiving state.” Utah Code Ann.
§ 62A-4a-701 art. III(2) (LexisNexis 2018) (listing information that
the sending state is required to provide to the receiving state).
Compliance with the ICPC can be evidenced by approval of a
uniform ICPC-100A request form. See American Public Human
Services Association, ICPC Regulations, Regulation No. 2,
(8)(d), https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.as
px [https://perma.cc/LZ24-GRSF] (“The receiving state ICPC-
100A approval expires six months from the date the 100A was
signed by receiving state.”). Further, the Adoption Act requires
that “[i]n any adoption proceeding . . . the court’s final decree of
adoption shall state that the requirements of [the ICPC] have
been complied with.” Utah Code Ann. § 78B-6-107(1)
(LexisNexis 2018).
¶26 As an initial matter, the district court did not state that the
ICPC had been complied with. Its findings of fact and
conclusions of law for adoption of Child state that the ICPC
request form was filed with the court and “[t]he requirements of
Title 78B, Chapter 6, Part 1, Utah Adoption Act, have been met.”
These findings, however, are silent as to compliance with the
ICPC. Therefore, remand is necessary for further findings as to
whether the ICPC was complied with.
20171038-CA 12 2019 UT App 103In re adoption of B.H.
¶27 Father cites In re adoption of T.M.M., 608 P.2d 130(Mont. 1980), a Montana case, to support his contention that non-
compliance with the ICPC must result in vacatur of the adoption
decree. In re adoption of T.M.M. is distinguishable from this
case, however, because the Montana Supreme Court held
that the adoptive parents failed to comply with the ICPC
when they moved a child to Montana without ever notifying a
Montana ICPC administrator. Id. at 134. Here, the ICPC
request form was approved by Montana’s ICPC administrator
on February 8, 2016 and Utah’s ICPC administrator on
February 9, 2016—prior to Child moving to Utah with Adoptive
Parents. Accordingly, where ICPC administrators were
notified and indeed approved the ICPC request form before
Child moved to Utah, the facts of In re adoption of T.M.M. simply
do not support Father’s position. Further, a finding of
compliance with the ICPC may be supported by the record in
this case. 7
7. Compliance with the ICPC requires that written notice,
containing specific information, be submitted to ICPC
administrators, see Utah Code Ann. § 62A-4a-701 art. III(2)
(LexisNexis 2018), not necessarily that all the specific
information be set forth on the ICPC request form 100A.
Adoptive Parents, in their brief, indicate that the complete ICPC
packet submitted to Montana’s ICPC administrator contained
information not included on the ICPC request form, including a
cover letter identifying Father as Mother’s husband.
Accordingly, on remand, it may be necessary to add the
complete ICPC packet to the record in order to find that the
ICPC was complied with in this case. And given that
noncompliance with the ICPC would not divest the court of
jurisdiction, in the event that the current record and complete
ICPC packet still do not comply with the ICPC, Adoptive
(continued…)
20171038-CA 13 2019 UT App 103In re adoption of B.H.
¶28 We acknowledge that the ICPC form in this case was
defective in that it listed Purported Father, rather than Father, as
Child’s parent. This defect does not, however, deprive Utah
courts of jurisdiction. To be sure, under the ICPC, a party could
be subject to criminal penalties for knowingly violating the
ICPC, see Utah Code Ann. § 62A-4a-711 (LexisNexis 2018), 8 but
such a violation does not amount to non-compliance with the
ICPC sufficient to divest the district court of jurisdiction or
unwind the adoption, id. § 62A-4a-701 art. IV (“[A]ny violation
[of the ICPC] shall constitute full and sufficient grounds for the
suspension or revocation of any license, permit, or other legal
authorization held by the sending agency . . . .”); see also In re
Adoption No. 10087, 597 A.2d 456, 465 (Md. 1991) (“The fact that
the ICPC had been violated in this case does not mandate
dismissal; rather it indicates the need for a prompt
determination of the best interest of this child.”).
¶29 Furthermore, any alleged non-compliance with the ICPC
did not deprive Father of his rights because he received notice of
the adoption proceedings, intervened, and received a trial
concerning the termination of his parental rights. If Father had
not received notice of, and had not intervened in, the adoption
proceedings, the court could have been divested of jurisdiction
under the Adoption Act. See Utah Code Ann. § 78B-6-105(4)(a)
(LexisNexis 2018). But that is not what happened here.
Therefore, any alleged defects in the ICPC request form did not
divest the court of jurisdiction. Nevertheless, because the district
court did not state that the ICPC requirements were complied
(…continued)
Parents can still undertake steps to comply with the ICPC prior
to reinstating the adoption decree.
8. Section 62A-4a-711 was not enacted until 2017 and therefore
does not apply to Mother in this case.
20171038-CA 14 2019 UT App 103In re adoption of B.H.
with, we set aside the adoption decree and remand for further
findings and conclusions on this issue.
CONCLUSION
¶30 The district court possessed subject matter jurisdiction to
terminate Father’s parental rights and potentially finalize the
adoption of Child under the Adoption Act, and because the
UCCJEA expressly states that it does not govern adoption
proceedings, UCCJEA jurisdiction was not required. Finally, we
set aside the adoption decree and remand for additional findings
and conclusions on whether the requirements of the ICPC have
been complied with.
20171038-CA 15 2019 UT App 103